Menu

Constitutional News & Analysis

This is another post in an ongoing series analyzing statistical trends at the Court. For a more complete look at the statistics that we collect on the Court, you can find all of our up-to-date charts and graphs here.

Pace of Opinions. The Court has released opinions at a blistering pace through the first half of October Term 2011. Since John Roberts became the Chief Justice in 2005, the Court has not released more than 19 merits opinions through the end of the January sitting. This year, however, the Court has released 21, including blockbusters United States v. Jones and Perry v. Perez – with the latter taking only 42 days from the Court’s notation of probable jurisdiction to a decision on the merits. The Court is likely to release a mid-major, Florence v. Board of Freeholders, during the February or March sittings.

Opinion Authorship. With the steady flow of opinions, the Justices have all been busy putting out opinions on a number of hot-button issues. Justice Scalia leads his colleagues with eight total opinions authored, including three majority opinions and three dissenting opinions. Justice Ginsburg has authored seven total opinions, comprised of four majority opinions and three concurring opinions. One Justice has yet to author even a single majority, concurring, or dissenting opinion: Justice Kennedy. In some ways his silence is surprising – the Court has disposed of nearly a quarter of the cases it will likely decide during OT11, but Justice Kennedy is nowhere to be found. On the other hand, he tends to write most frequently in high-profile, divided cases which often take longer to move from oral argument to published opinion. He has also traditionally written a low number of total opinions: last Term, only the Chief Justice and Justice Kagan authored fewer total opinions. However, compared to Justices Scalia and Ginsburg, who have authored eight and seven opinions, respectively, Justice Kennedy’s silence seems especially notable. Let’s take a look at how all of the Justices have fared during OT11.

Justice

Total Opinions

Scalia

8

Ginsburg

7

Thomas

4

Sotomayor

4

Breyer

3

Alito

3

Kagan

3

Roberts

2

Kennedy

0

Despite his silence up to this point in the Term, there is no doubt that Justice Kennedy will leave his mark on the Term by the end of June. With so many landmark decisions lined up for the Term, it seems likely that Justice Kennedy will write his fair share of noteworthy majority, concurring, and dissenting opinions.

Lone Dissents. Of the 21 merits opinions that have been released during OT11, five have been 8-1 decisions, including all four opinions released on January 10. The pace of 8-1 decisions is more notable than the mere number of opinions. During the past decade, the Court has released around 5-7 8-1 decisions per Term, although that tally rose to ten last year and has fallen to four in OT02, 05, and 08.

Stat Pack. We have also compiled an update to our OT11 Stat Pack. This edition features updates to reflect all opinions and orders released to date, as well as the introduction of our Justice Agreement charts. You can find it here.

The Supreme Court will conclude its oral arguments for the current Term with the major case on a state’s power to pass laws to control undocumented immigrants living in the state — Arizona v. United States (docket 11-182) — on April 25. The Court on Friday released the April calendar, listing cases to be heard in the final scheduled sitting of October Term 2011. This is a relatively thin calendar, with arguments heard only in the mornings; each session is limited to one hour. The sessions begin at 10 a.m. No other cases will be heard this Term unless something arises as an emergency.

The schedule of cases, including a brief summary of the issues at stake, follows the jump.

11-5683 — Dorsey v. United States (and 11-5721 – Hill v. United States) — application of Fair Sentencing Act of 2010 to all those sentenced after the law was enacted (Cases consolidated for one hour of oral argument)

Wed., April 18:

11-551 — Salazar v. Ramah Navajo Chapter — duty of federal government to pay all of the contract costs when an Indian tribe performs government functions under contract, even though Congress has imposed spending limits

11-246 — Match-E-Be-Nash-She-Wish Band v. Patchak (and 11-247 — Salazar v. Patchak) — immunity of U.S. government to lawsuits challenging title to land held in trust for Indian tribes’ use for gambling casino; also standing-to-sue issue (Cases consolidated for one hour of oral argument)

Wed., April 25:

11-182 — Arizona v. United States — constitutionality of state laws seeking to control the everyday work and movement of undocumented immigrants living within the state

The Obama Administration asked the Supreme Court on Friday to expand by a half-hour — to a total of six hours — the time allowed for oral arguments in late March on the constitutionality of the new federal health care law. In a ten-page motion, U.S. Solicitor General Donald B. Verrilli, Jr., said the added time would be provided for the opening arguments on Monday, March 26, on whether the challenges to the new individual insurance-purchase mandate are barred by the federal Anti-Injunction Act, a law designed to protect the government’s power to collect tax revenue. The motion also suggested ways to divide up the three days of argument among the parties, but noted that there is some disagreement over that part of the motion.

The Court on November 14 agreed to hear four separate issues about the new Affordable Care Act: first, the constitutionality of the insurance mandate; second, the issue of whether the challenges to the mandate are barred by the AIA; third, the question of what parts of the law, if any, would fall if the insurance mandate were struck down, and, fourth, the constitutionality of the expansion of Medicaid health coverage for poor people.

Here is the lineup of the three days of argument — first with the Court’s order, then with the division of time suggested on Friday by the Solicitor General:

Monday, March 26:

The Anti-Injunction Act issue: Court ordered 60 minutes of argument. The Solicitor General seeks 90 minutes, with the time allotted this way if the Court agreed to expand the time: Robert Long, amicus, arguing in favor of the AIA as a ban on challenges to the insurance mandate, 40 minutes; the Solicitor General, 30 minutes; the 26 states and the National Federation of Independent Business, 20 minutes combined. The motion noted that the states and the NFIB plan to seek more time than the 20 minutes proposed by the SG. If the Court declines to add 30 minutes, the 60 minutes would be allotted this way: Long, 30 minutes; U.S. 20 minutes, states and NFIB, 10 minutes combined.

Tuesday, March 27:

Constitutionality of the insurance mandate: Court ordered two hours of argument. The SG urged that the U.S. and its opponents (the 26 states and the NFIB), divide the time equally, with 60 minutes each. The SG noted that the states and NFIB will seek to divide their 60 minutes for 30 minutes each.

Wednesday, March 28:

First issue that day: Severability of the insurance mandate from other parts of the law if the mandate is struck down. The Court ordered 90 minutes of argument time. The SG urged the Court to divide the time equally: 30 minutes combined for the 26 states and the NFIB, 30 minutes for the U.S., and 30 minutes for Bartow Farr, as amicus arguing that all of the ACA must fall if the mandate is nullified (a position that neither the U.S. nor the states/NFIB support). The SG noted that the states and NFIB will seek more time than the 30 minutes assigned to them, and will ask for less for the U.S., with whatever time is given to the states and NFIB to be divided eqaully between them. The SG contended that, whatever time the Court allotted to the states and NFIB, the U.S. must have an amount equal to their combined time because it is facing a variety of other lawsuits over this issue, if the mandate falls, while the states and NFIB are interested in this case only.

Second issue the day: Constitutionality of the Medicaid expansion. Court ordered 60 minutes of argument time. The SG urged the Court to divide the time equally between the U.S. and the 26 states as a group. (The NFIB is not involved in this issue and there are no amici involved in oral argument.)

In SG Verrilli’s motion, he spelled out reasons for the disagreement, where that exists, and explained the government’s specific needs, while informing the Court of the forthcoming pleas for a different array that the states and the NFIB will be seeking.

The Court has complete discretion over how much time to assign for any argument, and how the argument is divided up.

An interesting opinion in United States v. Stone (E.D. Mich. Jan. 30, 2012); this isn’t my field, so I can’t opine on it with confidence, but the decision strikes me as likely right. Here’s an excerpt:

On November 30, 2011, the Government notified Defendants that it intended to call an “Academic Expert,” Professor Michael Barkun, to testify concerning his research into conspiracy belief and theories. In response to Defendants’ motion to preclude Dr. Barkun’s testimony, the Government admitted that a hearing pursuant to Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ( “Daubert hearing”) was necessary to test the admissibility of Professor Barkun’s testimony.

Before the hearing, the Government provided Defendants with a longer, more concrete Rule 16(a)(1)(G) summary of Dr. Barkun’s proposed testimony, containing notice that Dr. Barkun will testify about conspiracy subcultures, beliefs and theories; and theories such as “stigmatized knowledge,” “New World Order” and the “Illuminati.” The Government also intends to ask Dr. Barkun questions to elicit conspiracy theorists’ beliefs about the history behind Federal Emergency Management Agency (“FEMA”) detention centers and the role of the internet in spreading conspiracy belief literature and thought. Dr. Barkun also plans to testify about significant events in conspiracy belief and how conspiracy theorists view these events. The events listed in the Rule 16 summary include: Ruby Ridge, Waco, the Oklahoma City bombing and the 9/11 attacks.

The Government states:

As he testifies about each of the concepts above, Professor Barkun will also be asked whether he has reviewed some of the materials seized during the search warrants executed at the defendants’ residences and some of the recorded conversations and whether this material is consistent with the conspiracy beliefs about which he is testifying. The government found a great deal of material in numerous locations which espouse these beliefs, shedding light upon the defendants’ intent and motive, as well as linking the co-conspirators to the goal of the charged conspiracy in Count One.

… Dr. Barkun’s testimony will not assist the jury, as required by Rule 702…. At the Daubert hearing, the Government insisted it would use Dr. Barkun’s testimony as evidence of Defendants’ “intent and motive” to forcibly and violently oppose the Government under the Seditious Conspiracy count. However, the Government failed to connect the proposed expert testimony to the issues in dispute under that count.

For instance, Defendants asked the professor whether there is any literature on what people who read the conspiracy belief books, charts and other items seized from some of the Defendants’ homes, do with the information contained there, i.e, whether studies demonstrate whether these individuals lead normal lives or act out violently pursuant to their beliefs. Dr. Barkun replied that he is not aware of such studies. Similarly, when asked whether it was possible to predict what a conspiracy theorist will ultimately do with his or her beliefs, Dr. Barkin admitted it was impossible to predict.

Dr. Barkun could not opine on the number of conspiracy belief-related books a person must have, to become a conspiracy theorist, except to say it would have to be a lot. Defendants made the point that Dan Brown, the popular author of The Da Vinci Code and Angels and Demons, writes in his books about the same concepts and beliefs in the literature on which the professor’s testimony is based. Yet, it would be inaccurate to suggest that everyone who reads Dan Brown is a conspiracy theorist. More importantly, even if they are, the Court cannot make the additional required leap that conspiracy theorists will commit acts of violence simply because of their beliefs, or something they read in a Dan Brown novel.

Simply put, the nexus between the testimony the Government proffers through Dr. Barkun and the crimes charged is speculative at best. Dr. Barkun’s explanation of conspiracy theories and his opinion on whether or not items seized from Defendants’ homes are consistent with these theories will not aid the jury in determining whether Defendants agreed and intended to forcibly oppose the United States Government. As Defendants argued at the hearing, the crime charged is one of action, not advocacy. It is neither necessary nor sufficient that Defendants believe in conspiracy theories to be found guilty of Seditious Conspiracy.

This is not a case about the New World Order, the Illuminati, stigmatized knowledge or any other conspiracy theory or concept. This is so even though some of these concepts might be tangentially related to the crime charged, as stated in the indictment. (See, e.g., Doc. # 293, Second Superseding Indictment at ¶ 8 (alleging that the Hutaree views its enemies as participants in the “New World Order,” which the Hutaree intends to oppose by force)). It is a case about an alleged agreement to violently overthrow the Government. There is no place for Dr. Barkun’s proposed testimony, which the Court must treat with more caution than that of a lay witness because, as an expert, he need not have personal knowledge about the case to testify.

The absence of fit between Dr. Barkun’s proposed testimony and the issues is exemplified by some of the topics covered in the Government’s Rule 16(a)(1)(G) summary and during the hearing. These include: the history of FEMA detention centers; the standoff at Ruby Ridge; the standoff at Waco, Texas; the Oklahoma City bombing; and the September 11, 2001 attacks in New York and Washington, D.C. (“9/11 attacks”). The Government does not allege that Defendants were involved in these occurrences; they are not relevant to the facts alleged in the indictment.

The Court is unpersuaded that these topics are relevant even though the Government proposes only to show that conspiracy theorists believe the United States Government was behind these events. Dr. Barkun admitted that there are multiple and distinctive descriptions of the terms and concepts addressed at the hearing and that the Government’s summary of his testimony does not include them all. He admitted that not all conspiracy theorists hold the same views and that some may hold some of the views described in the summary, but not others. As explained more fully below, exploration into these topics would not only lead the trial way off-track, but would likely confuse and mislead the jury….

Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

And, returning to my first point, none of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement.

There’s much speculation and debate over whether non-citizens and others who are ineligible vote in U.S. elections, but relatively few documented instances. That makes this report by a local television station in Fort Myers, Florida all the more significant. The station’s investigation uncovered nearly one hundred non-citizens who were registered to vote, and several admitted to have cast ballots. The non-citizen voters were discovered because they said to be excused from jury service due to their lack of citizenship. The question now is whether this report is symptomatic of a larger problem in Florida, if not elsewhere, or a relatively isolated problem.